O'Sonis v O'Sonis [2019] FMSC 18; 22 FSM R. 268 (Chk. 2019) (24 June 2019)

FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2019-1008

SILIPA O’SONIS,
Petitioner,

vs.

BETHWELL O’SONIS,
Respondent.
___________________________________

ORDER OF DISMISSAL

Larry Wentworth
Associate Justice

Decided: June 24, 2019

APPEARANCES:

For the Petitioner: Mark A. Jesperson, Esq.
Micronesian Legal Services Corporation
P.O. Box D
Weno, Chuuk FM 96942

For the Respondent: Bethwell O’Sonis, Esq.
P.O. Box 308
Weno, Chuuk FM 96942

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HEADNOTES

Choice of Law; Domestic Relations; Jurisdiction - Diversity
When there is diversity of citizenship between the parties, litigation involving domestic relations issues, including custody and child support, falls within the FSM Supreme Court’s jurisdiction, even though state law will furnish the rules of decision. O’Sonis v. O’Sonis, 22 FSM R. 268, 269 (Chk. 2019).

Civil Procedure; Jurisdiction
The general rule is that the lawsuit filed first has priority over any other case involving the same parties and issues, even if filed later before a court that could also take jurisdiction. O’Sonis v. O’Sonis, 22 FSM R. 268, 270 (Chk. 2019).

Civil Procedure - Pleadings - Counterclaims; Domestic Relations - Divorce
Spousal and child support and child visitation and custody rights are, under Chuuk State Supreme Court Civil Procedure Rule 13(a), compulsory counterclaims that must be pled in the earlier state court divorce action, if they have not been already pled there. O’Sonis v. O’Sonis, 22 FSM R. 268, 270 (Chk. 2019).

Civil Procedure - Pleadings - Counterclaims; Domestic Relations - Divorce
Any claim which is filed as an independent, separate action by one spouse during the pendency of a prior claim filed by the other spouse and which may be denominated a compulsory counterclaim under Rule 13(a), may not be independently prosecuted during the pendency of the prior action but must be dismissed with the leave to file it as a counterclaim in the prior action or stayed until final judgment has been entered in that action. O’Sonis v. O’Sonis, 22 FSM R. 268, 270 (Chk. 2019).

Civil Procedure - Pleadings - Counterclaims
The failure to assert counterclaims in the case where they belong puts the counterclaims at risk that they will all be barred upon the entry of judgment in the case in which they were required to be pled. O’Sonis v. O’Sonis, 22 FSM R. 268, 270 (Chk. 2019).

Domestic Relations - Divorce
In a divorce action, even final support and custody and visitation orders might later be modified if materially changed circumstances warrant it. O’Sonis v. O’Sonis, 22 FSM R. 268, 270 (Chk. 2019).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

On May 23, 2019, Silipa O’Sonis filed a petition in this court seeking spousal and child support from her estranged husband, Bethwell O’Sonis, and further seeking certain child visitation and custody rights. Silipa is a citizen of the Republic of Fiji, and Bethwell is a Chuuk citizen.

On June 10, 2019, Bethwell filed a Response and Motion to Dismiss. He contends that this case should be dismissed because the issues must be decided under Chuuk state law and in his previously filed divorce action in the Chuuk State Supreme Court, and because of the general rule against splitting causes of action into separate cases.

On June 19, 2019, Silipa filed an opposition. She contends that she may have been served the complaint in the Chuuk State Supreme Court divorce action improperly and further contends that she may file this action because nothing has occurred in that case other than that her default was entered.

When there is diversity of citizenship between the parties, litigation involving domestic relations issues, including custody and child support, falls within the FSM Supreme Court’s jurisdiction, Mongkeya v. Brackett, 2 FSM R. 291, 292 (Kos. 1986), even though state law will furnish the rules of decision. Youngstrom v. Youngstrom, 5 FSM R. 335, 336 (Pon. 1992); Pernet v. Aflague, 4 FSM R. 222, 224 (Pon. 1990). The parties in this case are of diverse citizenship. Thus, although Chuuk state law will supply the rules of decision, that will not prevent the FSM Supreme Court from exercising jurisdiction over the matter.

Bethwell also asserts that dismissal is warranted because he had filed a divorce case. On July 13, 2018, Bethwell filed an action for divorce from his wife, Silipa, in the Chuuk State Supreme Court. On March 8, 2019, the court clerk entered Silipa’s default in that case. That case, O’Sonis v. O’Sonis, CSSC Civ. No. 079-2018, is apparently still pending. No dissolution of marriage has been ordered, and no orders have been issued concerning the custody, support, and visitation of the four O’Sonis children. Spousal support, child support, and visitation and custody rights are generally all handled as integral parts of divorce proceedings. Thus, this case involves, not only the same parties, but also some of the same issues, as the earlier filed state court divorce case.

"The general rule is that the lawsuit filed first has priority over ’any other case involving the same parties and issues, even if filed later before a court that could also take jurisdiction.’" Mori v. Hasiguchi, 16 FSM R. 382, 384 (Chk. 2009) (quoting Election Comm’r v. Petewon, 6 FSM R. 491, 498 (Chk. S. Ct. App. 1994)); see also Carius v. Johnson, 20 FSM R. 143, 146 (Pon. 2015); Salomon v. Mendiola, 20 FSM R. 138, 142 (Pon. 2015); Setik v. Pacific Int’l, Inc., 17 FSM R. 277, 280 (Chk. 2010).

This case involves the same parties as Chuuk State Supreme Court Civil Action No. 079-2018. All of the issues in this case are present, or should be present, in that earlier filed case. That is because, under Chuuk State Supreme Court Civil Procedure Rule 13(a), they are compulsory counterclaims that must be pled in that divorce action, if they have not been already pled there. See Gardner v. Gardner, 240 S.E.2d 399, 403-04 (N.C. 1978) (husband’s later-filed, separate and independent action for divorce was compulsory counterclaim to wife’s earlier filed action for spousal support).

Any claim which is filed as an independent, separate action by one spouse during the pendency of a prior claim filed by the other spouse and which may be denominated a compulsory counterclaim under Rule 13(a), may not be prosecuted during the pendency of the prior action but must be dismissed with the leave to file it as a counterclaim in the prior action or stayed until final judgment has been entered in that action.

Id. at 406. Silipa’s support, custody, and visitation claims are compulsory counterclaims to Bethwell’s action for divorce.

The failure to assert counterclaims in the case where they belong puts the counterclaims all at risk that they will be barred upon the entry of judgment in the case in which they were required to be pled. See In re Iannochino[2001] USCA1 73; , 242 F.3d 36, 42 (1st Cir. 2001) (when counterclaim is compulsory, party that fails to assert it may be barred by res judicata). Admittedly, this risk is not as great in a divorce action because even final support and custody and visitation orders might later be modified if materially changed circumstances warrant it.

In the court’s view, the state court divorce matter is still pending. Accordingly, Bethwell’s motion to dismiss is granted. This case is dismissed without prejudice to any further proceeding in the state court matter.

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